FEATURES OF
HIGH COURTS
UNDER
GOVERNMENT OF INDIA ACT
1935
AKNOWLEDGEMENT
CONTENTS
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INTRODUCTION
The
Government of India Act 1935 was originally passed in August 1935 and is said
to have been the longest (British) Act of Parliament ever enacted by that time.
This can be termed as the old version of present Indian Constitution as most of
the provisions in the Indian constitution is borrowed from this Act of 1935. It
was the British version of Indian Constitution
The most significant aspects of the Act were:
The
introduction of direct elections, thus increasing the franchise from seven
million to thirty-five million people a partial reorganization of the
provinces, Sindh was separated from Bombay, Bihar and Orissa was split into
separate provinces of Bihar and Orissa, Burma was completely separated from
India, Aden was also detached from India, and established as a separate Crown
colony. Membership of the provincial
assemblies was altered so as to include more elected Indian representatives,
who were now able to form majorities and be appointed to form governments the
establishment of a Federal Court. However, the degree of autonomy introduced at
the provincial level was subject to important limitations: the provincial
Governors retained important reserve powers, and the British authorities also
retained a right to suspend responsible government. The parts of the Act
intended to establish the Federation of India never came into operation, due to
opposition from rulers of the princely states. The remaining parts of the Act
came into force in 1937, when the first elections under the Act were also held.
Indians had
increasingly been demanding a greater role in the government of their country
since the late 19th century. The Indian contribution to the British war effort
during the First World War meant that even the more conservative elements in
the British political establishment felt the necessity of constitutional
change, resulting in the Government of India Act 1919. That Act introduced a
novel system of government known as provincial "dyarchy", i.e.,
certain areas of government (such as education) were placed in the hands of ministers
responsible to the provincial legislature, while others (such as public order
and finance) were retained in the hands of officials responsible to the
British-appointed provincial Governor. While the Act was a reflection of the
demand for a greater role in government by Indians, it was also very much a
reflection of British fears about what that role might mean in practice for
India (and of course for British interests there).The act of 1935 in provided
for the federal structure, distribution of powers, provincial autonomy,
responsible form of government, bicameral legislature, emergency power of
Governor General. The experiment with dyarchy proved unsatisfactory. A
particular frustration for Indian politicians was that even for those areas
over which they had gained nominal control, the "purse strings" were
still in the hands of British officialdom.
The
intention had been that a review of India's constitutional arrangements and
those princely states that were willing to accede to it. However, division between
Congress and Muslim representatives proved to be a major factor in preventing
agreement as to much of the important detail of how federation would work in
practice. Against this practice, the new Conservative-dominated National
Government in London decided to go ahead with drafting its own proposals (the
white paper). A joint parliamentary select committee, chaired by Lord
Linlithgow, reviewed the white paper proposals at great length. On the basis of
this white paper, the Government of India Bill was framed. At the committee
stage and later, to appease the diehards, the "safeguards" were
strengthened, and indirect elections were reinstated for the Central
Legislative Assembly (the central legislature's lower house). The bill duly
passed into law in August 1935. As a result of this process, although the
Government of India Act 1935 was intended to go some way towards meeting Indian
demands, both the detail of the bill and the lack of Indian involvement in
drafting its contents meant that the Act met with a lukewarm response at best
in India, while still proving too radical for a significant element in Britain.
DEFINITION OF HIGH COURT
BY THE GOVERNMENT OF INDIA ACT 1935
(1)
Every High Court shall be a court of record and shall consist of a chief
justice and such other judges as His Majesty may from time to time deem it
necessary to appoint: Provided that the judges so appointed together with any
additional judges appointed by the Governor-General in accordance with the
following provisions of this chapter shall at no time exceed in number such
maximum number as His Majesty in Council may fix in relation to that court. (2)
Every judge of a High Court shall be appointed by His Majesty by warrant under
the Royal Sign Manual and shall hold office until he attains the age of sixty
years : Provided that- (a) a judge may by resignation under his hand addressed
to the Governor resign his office ; (b) a judge may be removed from his office
by His Majesty by warrant under the Royal Sign Manual on the ground of
misbehaviour or of infirmity of mind or body, if the Judicial Committee of the
Privy Council, on reference being made to them by His Majesty, report that the
judge ought on any such ground to be removed. (3) A person shall not be
qualified for appointment as a judge of a High Court unless he- (a) is a
barrister of England or Northern Ireland, of at least ten years standing, or a
member of the Faculty of Advocates in Scotland of at least ten years standing ;
or (b) is a member of the Indian Civil Service of at least ten years standing,
who has for at least three years served as, or exercised the powers of, a
district judge; or (c) has for at least five years held a judicial office in
British India not inferior to that of a subordinate judge, or judge of a small
cause court; (d) has for at least ten years been a pleader of any High Court,
or of two or more such Courts in PART IX. succession -cont. Provided that a
person shall not, unless he is, or when first appointed to judicial office was,
a barrister, a member of the Faculty of Advocates or a pleader, be qualified
for appointment as Chief Justice of any High Court constituted by letters
patent until he has served for not less than three years as a judge of a High
Court. In computing for the purposes of this subsection the standing of a
barrister or a member of the Faculty of Advocates, or the period during which a
person has been a pleader, any period during which the person has held judicial
office after he became a barrister, a member of the Faculty of Advocates, or a
pleader, as the case may be, shall be included. (4) Every person appointed to
be a judge of a High Court shall, before he enters upon his office, make and
subscribe before the Governor or some person appointed by him an oath according
to the form set out in that behalf in the Fourth Schedule to this Act.
MAIN FEATURES OF THE ACT ON HIGH COURT
In 1935, the British parliament enacted the
Government of India Act which sought to remodel the constitution of the Country
on federal lines. The act contained a number of provisions regulating the
composition, constitution and working of the High Courts. While the Act
provided generally that jurisdiction of the High Courts would continue to be
the same as it had been before its commencement, nevertheless, it affected
certain notable changes in the constitution of High Courts. According to this
Act courts shall in relation to British
India be deemed to be High Courts for the purposes of this Act, that is to say,
the High Courts in Calcutta, Madras, Bombay, Allahabad, Lahore, and Patna, the
Chief Court in Oudh, the Judicial Commissioner's Courts in the Central
Provinces and Berar, in the North-West Frontier Province and in Sind, any other
court in British India constituted or reconstituted under this chapter as a
High Court, and any other comparable court in British India which His Majesty
in Council may declare to be a High Court for the purposes of this Act :
Provided that, if provision has been made before the commencement of Part III
of this Act for the establishment of a High Court to replace any court or
courts mentioned in this subsection, then as from.
Under the
section 220 of this Act, every High Court shall be a court of record and shall
consist of a chief justice and such other judges as His Majesty may from time
to time deem it necessary to appoint: Provided that the judges so appointed
together with any additional judges appointed by the Governor-General in
accordance with the following provisions of this chapter shall at no time
exceed in number such maximum number as His Majesty in Council may fix in
relation to that court.
NUMBER OF JUDGES
The Indian
High Courts Act, 1911, has fixed the maximum number of the judges in a High
Court at 20. The Act of 1935 dropped this numerical ceiling and gave authority
to the king-in-council to fix the number of judges for each High Court from
time to time. In this way, a kind of flexibility was introduced regarding the
number of judges which could be fixed for High Court from time to time keeping in view the load of
work therein. A judge of High Court was to be appointed by His Majesty by
warrant under the Royal Sign Manual, but power was given to the
Governor-General-in –Council to appoint additional judges temporarily for a
maximum period of two years when a judge or Chief Justice of a High Court was
unable to function, or the office of the judges or the office of the Chief
Justice fell vacant, or a High Court was not, however, to exceed the maximum
fixed for the Court by the King-in-Council as mentioned.
APPOINTMENT OF JUDGES
Till 1935, The
judges of the High Court were appointed by the letters Patent issued by the
Sovereign in England and used to hold the office during His Majesty’s
pleasure. There was no statutorily fixed
age of retirement but under the terms of their appointment the judges used to
retire at the age of sixty.
In England,
it is very well established principle of Constitutional law that the judges
hold their office during good behaviour and that they cannot be removed by the
Crown except only when both Houses of the Parliament present an address to that
effect. The principle was established in England by the Act of Settlement by
the Act of Settlement,1701. The Act of 1935, however sought to formalise the
convention of judicial independence by giving it a legal tenor, and this
constituted the major change in the existing position.it was now laid down that
a High Court judge would hold his office up to the age of sixty years. He could
be removed earlier by His Majesty only on the ground of misbehaviour or of
infirmity of mind or body, if the Privy Council, on reference made to it by His
Majesty, reported that the judges ought to be removed on any such ground. In
this way, the High Court judges got a security of tenure in words as well as in
essence. Every judge of a High Court
shall be appointed by His Majesty by warrant under the Royal Sign Manual and
shall hold office until he attains the age of sixty years, Provided that- (a) a
judge may by resignation under his hand addressed to the Governor resign his
office ; (b) a judge may be removed from his office by His Majesty by warrant
under the Royal Sign Manual on the ground of misbehaviour or of infirmity of
mind or body, if the Judicial Committee of the Privy Council, on reference
being made to them by His Majesty, report that the judge ought on any such
ground to be removed. A person shall not be qualified for appointment as a
judge of a High Court unless he is a barrister of England or Northern Ireland,
of at least ten years standing, or a member of the Faculty of Advocates in
Scotland of at least ten years standing or is a member of the Indian Civil
Service of at least ten years standing, who has for at least three years served
as, or exercised the powers of, a district judge or has for at least five years
held a judicial office in British India not inferior to that of a subordinate
judge, or judge of a small cause court or has for at least ten years been a
pleader of any High Court, or of two or more such Courts . succession -cont.
Provided that a person shall not, unless he is, or when first appointed to
judicial office was, a barrister, a member of the Faculty of Advocates or a
pleader, be qualified for appointment as Chief Justice of any High Court
constituted by letters patent until he has served for not less than three years
as a judge of a High Court. In computing for the purposes of this subsection
the standing of a barrister or a member of the Faculty of Advocates, or the
period during which a person has been a pleader, any period during which the
person has held judicial office after he became a barrister, a member of the
Faculty of Advocates, or a pleader, as the case may be, shall be included.
Every person appointed to be a judge of a High Court shall, before he enters
upon his office, make and subscribe before the Governor or some person
appointed by him an oath according to the form set out in that behalf in the
Fourth Schedule to this Act. The judges of the several High Courts shall of
judges be entitled to such salaries and allowances, including allowances for
expenses in respect of equipment and travelling upon appointment, and to such
rights in respect of leave and pensions, as may from time to time be fixed by
His Majesty in Council: Provided that neither the salary of a judge, nor his
rights in respect of leave of absence or pension, shall be varied to his
disadvantage after his appointment.
Since 1861,
the position had been that while barristers of five year ‘ standing were
qualified to be appointed as High Court judges, advocates only of ten years’
standing could be so appointed. This was illogical and constituted
discrimination against the lawyers. The Act of 1935 did away with this
dichotomy and introduced the rule that barristers and advocates of ten years’
standing were to be qualified for the appointment as High Court judges. A rule
had prevailed since the inception of High Courts, that not less than one-third of the judges of a High
Court must be barristers, and at least one-third of the judges must be civil
servants.
APPOINTMENTOF ADDITIONAL JUDGES
If the office of any other judge of a High
Court becomes vacant, or if any such judge appointed to act temporarily as a
chief justice, or is by reason of absence, or for any other reason, unable to
perform the duties of his office, the Governor- General may in his discretion
appoint a person duly qualified for appointment as a judge to act as a judge of
that court, and the person so appointed shall, unless the Governor-General in
his discretion thinks fit to revoke his appointment, be deemed to be a judge of
that court until some person appointed by His Majesty to the vacant office has
entered on the duties thereof; or until the permanent judge has resumed his
duties. (3) If by reason of any temporary increase in the business of any High
Court or by reason of arrears of work in any such court it appears to the
Governor- General that the number of the judges of the court should be for the
time being increased, the Governor- General in his discretion may, subject to
the foregoing provisions of this chapter with respect to the maximum number of
judges, appoint persons duly qualified for appointment as judges to be
additional judges of the court for such period not exceeding two years as he
may specify.
CHIEF JUSTICE
The Indian
High Courts Act 1861, had laid down that the Chief Justice of a High Court
should always be a barrister or an advocate. The underlying idea was to have a
trained lawyer as the Chief Justice. A civilian judge could not thus be
appointed as the Chief Justice of a High Court, howsoever senior he might be.
To ensure independence of the High Courts from any executive interference in
India, the Act of 1935 provided that the salaries, allowances, and pensions of
High Court judges would be fixed by His Majesty-in-Council, upon their appointment,
and that these could not be varied to disadvantage of a judge after his appointment .
If the
office of chief justice of a High Court becomes vacant, or if any such chief
justice is by reason of absence, or for any other reason, unable to perform the
duties of his office, those duties shall, until some person appointed by His Majesty
to the vacant office has entered on the duties thereof, or until the chief
justice has resumed his duties, as the case may be, be performed by such one of
the other judges of the court as the Governor-General may in his discretion
think fit to appoint for the purpose.
The
prohibition imposed in 1951 on the original jurisdiction of the three High
Courts to take cognisance of any matter concerning revenue was continued by the
act of 1935. Thus, the historical anachronism which had come into being in 1781
due to a clash of jurisdiction between the companies adalats and the Supreme
Court, was continued even after 180 years when all such chances of conflict had
vanished.it was in the nature of an antiquated fossil continued on the statue
book even though it was extremely anomalous and for which any historical
justification had completely disappeared
POWERS OF HIS MAJESTY
if the
Chamber or Chambers of the Legislature of any Province present an address in
that behalf to the Governor of the Province for submission to His Majesty by
letters patent constitute a High Court for that Province or any part thereof or
reconstitute in like manner any existing High Court for that Province or for
any part thereof, or, where there are two High Courts in that Province, those
can be amalgamated. It also say that, where any Court is reconstituted, or two
Courts are amalgamated, as aforesaid, the letters patent shall provide for the
continuance in their respective offices of the existing judges, officers and
servants of the Court or Courts, and for the carrying on before the
reconstituted Court or the new Court of all pending matters, and may contain
such other provisions as may appear to His Majesty to be necessary by reason of
the reconstitution or amalgamation.
OTHER FEATURES OF HIGH COURT UDER GOVERNMENT OF INDIA ACT 1935
This Act
provides that all the proceedings in the High Court shall be in English. The
administrative expenses of a High Court, including all salaries, allowances and
pensions payable to or in respect of the officers and servants of the court and
the salaries and allowances of the judges of the court shall be charged upon
the revenues of the Province, and any fees or other moneys taken by the court
shall form part of those revenues. The
Governor shall exercise his individual judgment as to the amount to be included
in respect of such expenses as aforesaid in any estimates of expenditure laid
by him before the Legislature. Any judge appointed before the commencement of
Part III of this Act to any High Court shall continue in office and shall be
deemed to have been appointed under this Part of this Act, but shall not by
virtue of this Act be required to relinquish his office at any earlier age than
he would have been required so to do, if this Act had not been passed. Where a High Court exercises jurisdiction in
relation to more than one Province or in relation to a Province and an area not
forming part of a Province, references in this chapter to the Governor in relation
to the judges and expenses of a High Court and references to the revenues of
the Province shall be construed as references to the Governor and the revenues
of the Province in which the Court has its principal seat, and the reference to
the approval by the Governor of rules, forms and tables for subordinate courts
shall be construed as a reference to the approval thereof by the Governor of
the Province in which the subordinate court is situate, or, if it is situate in
an area not forming part of a Province, by the Governor-General.
Subject to the provisions of this Part of this
Act, to the provisions of any Order in Council made under this or any other Act
and to the provisions of any Act of the appropriate Legislature enacted by
virtue of powers conferred on that Legislature by this Act, the jurisdiction
of, and the law administered in, any existing High Court, and the respective
powers of the judges thereof in relation to the administration of justice in
the court, including any power to make rules of court and to regulate the
sittings of the court and of members thereof sitting alone or in division courts,
shall be the same as immediately before the commencement of Part III of this
Act.
ADMINISTRATION CONTROL OVER HIGH COURT
A very
controversial question which came up for the time of enactment of the
Government of India, 1935, was whether the administrative control over the High
Courts should be vested in the Federal Government or the provincial Government.
Up to the Act of 1935, administrative control over a High Court was vested with
the provincial Government. Act of 1935 also states that every High Court shall
have superintendence over all courts in. India for the time being subject to
its appellate jurisdiction, and may do any of the following things, call for
returns, to make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts, to prescribe forms in which books,
entries and accounts shall be kept by the officers of any such courts, to
settle tables of fees to be allowed to the sheriff, attorneys, and all clerks
and officers of courts : Provided that such rules, forms and tables shall not
be inconsistent with the provision of any law for the time being in force, and
shall require the previous approval of the Governor. Nothing in this section
shall be construed as giving to a High Court any jurisdiction to question any
judgment of any inferior court which is not otherwise subject to appeal or
revision.
Because of the
historical reasons, the position of the Calcutta High Court and the government
of India insofar as decisions concerning the Court’s strength and its
establishment and its financial requirements for buildings and other purposes
rested with the Central Government, while the extra expenditure involved by
such decisions fell upon Bengal Government
CONCLUSION
The Act of
1935 carried out the committee’s suggestion and placed the administrative
control of the High Court in the concerned Provincial Government. Nevertheless,
the Act took adequate care to safeguard judicial independence of the High
Courts and to immunize them from local political pressures. It thus laid down
that the expense of a High Court would be charged upon the Provincial revenue.
The governor, in his individual judgement, was to assess the expenditure of the
High court which was to be included in the provincial budget and the
legislative could not reduce the same. Thus, the High Court’s expenses were not
subject to legislative vote. The Act further laid down that no discussion could
take place in the legislature with respect to the conduct of a High Court judge
in the discharge of his duties. These safeguards along with the security to tenure
and salary, mentioned above.
The Government of India Act, 1935, thus,
conferred a very dignified status on the High Courts. Their independence was
adequately safeguarded. It ensured that they be in a position to discharge
their judicial functions impartially and without fear or favour. Since
appointment of High Courts was in the hands of the Crown, power to confer
jurisdiction on the High Court was divided between centre and the provinces,
and administrative control over a High Court was vested in the provincial
Government concerned, it would be correct to say that the High Courts were
neither fully federalized nor fully provincialized.
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